The civilianisation of australian military law

B The Introduction of A Single Military Disciplinary Statute

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B The Introduction of A Single Military Disciplinary Statute

The introduction of the Defence Force Disciplinary Act 1982 (Cth) (‘the Discipline Act’) ushered a new era in Australian military law. It removed many features of Australian military law that had been inherited from England, such as the use of different disciplinary codes for each branch of the services. The English military law system was also significantly altered by successive Australian governments. Those alterations had, according to the Minister at the introduction of the Discipline Act, lead to a military disciplinary system that was ‘a Serbian bog of archaisms. Oddities and inconsistencies abound’.90 In Re Tracey; Ex parte Ryan91 Brennan and Toohey JJ explained that the Discipline Act provided:

the first occasion in this country when provisions for common application to the naval, military and air forces of the Commonwealth have been enacted to define services offences, criminal liability, punishments, apprehension and investigation and to confer jurisdiction on service tribunals organised in a common system. The Discipline Act swept aside a complex of Commonwealth Acts and regulations and Imperial Acts and regulations which had theretofore applied naval, military and air force law to the navy, the army and the air force. 92

The Discipline Act introduced a uniform approach to military discipline and also a general scheme for the investigation and administration of military disciplinary offences.93 The Discipline Act also proved an important conduit for the influx of principles of the civilian criminal law. The Defence Force Disciplinary Appeal Tribunal has explained that the Discipline Act:

appears to equate service offence with criminal offences tried in the civil courts. Thus, the jurisprudence of criminal law in its application to trials in civil courts may now have more relevance in the considerations of service offences when offences were considered within the jurisprudence applicable to military law.94

There are many decisions of both the Defence Force Disciplinary Appeal Tribunal95 and the Full Court of the Federal Court96 that illustrate the increasing relevance of civilian law jurisprudence to the determination of military offences. Another important feature of the Discipline Act was the application to service members of the external criminal law. This occurs by operation of s 61 of the Discipline Act, which essentially extends the ACT Criminal Code to service members.97 This section confirms that service members remain amenable to the general criminal law. It is also clear that this arrangement has extraterritorial operation. Accordingly, service members may be amenable to civilian criminal law whilst overseas.98

The Discipline Act not only made military disciplinary law much easier to understand and administer, it also made the law much easier to amend. That possibility has proved to be important to the subsequent history of the Act. The most important amendment was the introduction of legislation to ensure compliance of the Discipline Act with the Criminal Code Act 1995 (Cth).99 The application of common law principles of criminal responsibility has been replaced with the principles of the Criminal Code.100 Although the Code was significantly altered in its application to the armed forces,101 those amendments were devised on the assumption that military legislation should conform to the same principles of civilian law unless there was good reason for the contrary.102 That assumption implies that the content of military law should, where possible, be the same as civilian law and that any differences between must be justified.

When the Judge Advocate General subsequently reported on the effect of amendments, he referred to them as a process of harmonisation between the Criminal Code and the Discipline Act. He also drew attention to the need for ‘intensive’ and ‘ongoing’ training for those defence personnel who administered the Discipline Act.103 This assessment of the implementation of the Criminal Code suggests that the process is one that will draw many aspects of civilian and military law closer and that personnel responsible for the implementation of military law will need to increasingly draw from civilian law principles.

C The Role of the DFDAT

The role of the Defence Force Discipline Appeals Tribunal (‘DFDAT’) has complimented the introduction of a single comprehensive scheme of criminal liability for service members by the Discipline Act because there is now a single appellate body to administer a single system of military criminal law. Justice McHugh commented that ‘[F]or all practical purposes, the Tribunal is a court of criminal appeal. Its members are serving judges’.104 While it is not possible to undertake a detailed analysis of the jurisprudence of the Tribunal, his Honour was clearly correct in the sense that the decisions of the Tribunal appear very similar to those of a specialised court of criminal appeal. Many of the appeals determined by the tribunal deal with principles of criminal liability, statutory interpretation, and the like, which commonly arise in civilian courts of criminal appeal. Even a cursory survey of a range of Tribunal decisions, which span issues such as the application of the rule against bias to conduct in a disciplinary hearing,105 accrued rights and liabilities under criminal legislation,106 the principles governing property offence s,107 or application for extensions of time to lodge appeals,108 reveals that the reasoning of the Tribunal bears an obvious similarity to that of a court of criminal appeal.

It should be noted that the Federal Court is granted appellate jurisdiction over decisions of the Tribunal, but this jurisdiction is limited to questions of law only.109 The nature of this jurisdiction limits the function of the Federal Court to the determination of the question of law that was involved in the decision of the Tribunal. The structure of the right of appeal is such that the Federal Court exercises original rather than appellate jurisdiction over Tribunal.110 It has been suggested that the apparently limited appellate role of the Federal Court means that it cannot draw from comparable and useful jurisprudence from courts of criminal appeal.111 In my view, that apparent limitation has little practical consequence because the Tribunal itself functions as a quasi court of criminal appeal and, therefore, introduces the jurisprudence of those courts into defence disciplinary matters.

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